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Modification of Custody and Parenting Time

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Sometimes clients come to Wilson Law Group months or years after finalizing a divorce or custody case and want to change the custody labels or parenting time schedule established previously. Some parents want to modify custody labels due to a new reality: a new job that is farther away, or because the child has started living with the “non-custodial” parent full-time. Other parents want to modify custody because they are concerned with the other parent’s parenting skills, or fear for the safety of the child. Modification, however, can be a very difficult process in Minnesota as many judges believe that maintaining stability and consistency is best for children.

Minn. Stat. § 518.18 controls modification of custody and parenting time in Minnesota. That statute states: “Unless agreed to in writing by the parties, no motion to modify a custody order or parenting plan may be made earlier than one year after the date of the entry of a decree of dissolution or legal separation containing a provision dealing with custody…” The statute goes on to state that if a motion to modify has been brought before, no matter if it was granted, a subsequent motion to modify may not be filed for another two years. This means that if your divorce or custody case was finalized less than one year ago, you are barred from filing a motion to modify your parenting time or custody. There are two exceptions to this rule: you can file a motion to modify custody or parenting time if the court finds a “persistent and willful denial or interference with parenting time” or the Court has reason to believe the child’s present environment may endanger the child’s physical or emotional health or impair his/her emotional development.

Even if a parent can meet the timing requirements, the Court can only modify a custody arrangement that includes the child’s primary residence if one of the following situations occurs:

The Court finds that a change in circumstances has occurred and a modification is in the best interests of the child and the parents previously agreed to apply the best interest standard.

The parties agree to the modification.

The child has been “integrated into the family” of the parent filing the motion with the consent of the other parent. This means that the child has been living with the parent filing the motion and the other parent is aware of this move and has allowed it to happen.

The child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development and the harm likely to be caused by moving to a different home is outweighed by the advantage of the move.

The primary custodial parent has asked the Court to move to another state, this request was denied, and the parent moved anyway.

What should you do if you believe one of the situations above applies to you?

If you believe that a change in circumstances has occurred and that it would be better for your child to live with you, you should consider filing a motion. A “change in circumstances” must be significant and an issue that occurred from the time that the last custody order was issued. Nice-Peterson v. Nice-Peterson, 310 N.W.2d 471 (Minn. 1981). It cannot be a continuation of an ongoing problem. Roehrdanz v. Roehrdanz, 438 N.W. 2d 687 (Minn. Ct. App. 1989). Examples from caselaw of changes of circumstance include: depriving children of a “normal childhood and family relationships” due to work schedules (Myhervold v. Myhervold, 271 N.W.2d 837 (Minn. 1978)) and allowing a child’s relationship with grandparents or other family members to deteriorate (Geibe v. Geibe, 571 N.W. 2d 774 (Minn. Ct. App. 1997)).

If you and the other parent have an agreement on the modification, you should still file a motion with the Court to modify. This will ensure that the agreement you have reached will be enforceable by court order and will give permanency to the decision. Do not trust that the other parent will always agree.

If you are not the custodial parent and your child has been living with you for a significant length of time and the other parent is aware of this (i.e. you didn’t kidnap the child, or convince the other parent through fraud or coercion) you should file a motion to modify custody.

If you have significant concerns that your child is being abused while in the home of the other parent, there are additional steps you should consider in order to best build your case for modification. First, consider calling the police to report abuse. This may lead to an investigation by Child Protective Services. Second, consider requesting an Order for Protection if you truly fear that your child will continue to be abused if left in the presence of the other parent. An Order for Protection is a much faster process than a motion to modify custody and ensure that your child is safe while you modify custody.

What if your child wants to move and live with you (or the other parent)? A child’s preference can be considered, especially if the child is a teenager, but it will not be enough to guarantee a modification with an agreement from the other parent. See Geibe v. Geibe, 571 N.W.2d 774 (Minn. Ct. App. 1997).

If you would like more information about custody modification, please contact Wilson Law Group at 612-436-7100 for a consultation.